Board of Environmental Review seeks selenium rule redo

The quarrel over a Lake Koocanusa water quality standard took an unusual turn recently when the state Board of Environmental Review voted to send a letter to the federal government saying it erred in its earlier adoption of a standard aimed at reducing waterborne mining pollution.

The letter to a top official in the U.S. Environmental Protection Agency asserts that the BER made “a legal error” in its previous selenium water quality standard and that the standard is therefore “invalid for both state and federal purposes.”

BER voted 5-2 to send the letter to the EPA. Attorneys working for mining giant Teck Coal drafted the letter, which comes as Teck faces mounting pressure from U.S. officials and tribes on both sides of the border to reduce mining-related pollution entering aquatic ecosystems.

The letter represents the latest development in Teck’s months-long pressure campaign to strike Montana’s water quality standard for selenium, a chemical byproduct of Teck’s British Columbia coal mining operations that can hamper reproductive success in fish and lead to spinal, facial and gill deformities, even in small quantities.

Montana adopted its .8-micrograms-of-selenium-per-liter-of-water standard for Koocanusa in December 2020 after more than five years of research review and consultation between government agencies and tribes on both sides of the U.S.-Canada border. The Montana Department of Environmental Quality maintains that the 0.8 standard was adopted legally and is an appropriate limit to keep Lake Koocanusa’s fishery healthy.

In 2021, Teck petitioned BER — the quasi-judicial volunteer board that adjudicates permitting-related disputes between industry representatives and the DEQ — to toss out the standard on the grounds that it’s more stringent than the EPA’s general guidance for selenium in slow-moving water bodies, and therefore violates a “stringency statute” that says the state cannot adopt stricter standards than comparable federal guidelines.

The BER, which is mostly composed of Gov. Greg Gianforte appointees, was inclined to agree with Teck, but bumped up against the limits of its authority. BER wanted DEQ to start over with a new rulemaking process, but DEQ opted to take another tack. In lieu of starting over with rulemaking, the department issued written findings earlier this year demonstrating why the more stringent selenium standard is necessary, an option that is also codified in the state’s stringency statute.

With that avenue to eliminating Montana’s selenium standard closing, Teck shifted its approach and is now bringing procedural claims before federal regulators. The company is asserting that the preceding Board of Environmental Review — the one made up of former Gov. Steve Bullock appointees — “erroneously informed the public that the Lake Water Column Standard was not set more stringent than the federal guidelines and that the Stringency Statute, therefore, did not apply.”

“Pursuant to federal and state law, the legal error and failure to comply with the Stringency Statute mean that the Lake Water Column Standard has been invalid since its inception,” the letter reads. “We kindly ask for confirmation that EPA has vacated its prior approval of the Lake Water Column Standard within at least 90 days.”

The Montana Environmental Information Center issued comments in support of the state’s 0.8 micrograms-per-liter selenium standard and the process that preceded its adoption. In a Monday conversation with Montana Free Press, MEIC Deputy Director Derf Johnson said the board’s recent selenium-related decisions are reflective of its industry-heavy representation.

“I think it’s shocking that the board would basically have a private corporation in Canada, which it’s purportedly somewhat responsible for regulating, draft up their legal interpretation of the law, throw BER letterhead onto it and send it to the U.S. Environmental Protection Agency,” Johnson said. “I think this board has completely stepped outside the confines of the law.”

Johnson said conversations he’s had with DEQ attorneys suggest the department won’t move forward with BER’s repeated directive to start over with rulemaking. He said he also doubts EPA will scrap the selenium rule. Per the Clean Water Act, the EPA has ultimate oversight over the state’s water quality standards, though DEQ plays a role in developing standards.

The EPA was opaque in its response to MTFP’s emailed questions about the policy implications of the letter.

In a Monday morning email, EPA spokesperson Richard Mylott said only that the agency “will be evaluating any letters received and next steps.”

DEQ spokesperson Moira Davin said the department does not agree with BER’s assertion that the EPA is bound to review and act on BER’s request to vacate the water quality standard. In an email, she indicated that the board’s direction to redo rulemaking doesn’t carry the weight of law.

“As of July 21, 2021 the Board of Environmental Review has no rule making authority and DEQ has sole authority to adopt rules for the administration of the Montana Water Quality Act,” Davin wrote, referencing a law the state Legislature passed in 2021 stripping BER of rulemaking powers. “The department will review the Lake Koocanusa standard during the triennial review and determine whether modifications are appropriate.”

In recent months, British Columbia’s government and Canadian Prime Minister Justin Trudeau have fielded escalating calls to decrease selenium and nitrate pollution issuing from Teck’s mountaintop removal coal mining operation, which Teck wants to expand by nearly 18 square miles.

Six Native American and First Nations governments, including the Confederated Salish and Kootenai Tribes and the Kootenai Tribe of Idaho, sent a letter to Trudeau and President Joe Biden on Nov. 23 urging the U.S. and Canada to “act immediately” to refer the issue of trans-boundary mining pollution to the International Joint Commission, the body tasked with preventing and resolving disputes that involve shared waters.

The letter calls for both countries to agree to use transparent, independent science to stabilize and reduce the volume of mining waste reaching waterways. Native American and First Nation governments of the Ktunaxa Nation have been making such requests for a decade.

“Ten years ago, there may not have been sufficient data to take immediate action; however the lack of data can no longer be used as an excuse for inaction. The scientific evidence of severe impacts to Ktunaxa Territory is clear, and inaction is unacceptable,” the letter reads.

In a press release about the IJC referral request, Ktunaxa Nation Chair Kathryn Teneese describes the governments’ approach to date as being hindered by coal mining profits and a “willful lack of engagement.”

“There are solutions to be found,” Teneese said. “The IJC reference is the next step to finding them.”

In May, the International Joint Commission sent a letter to Biden and Trudeau saying that it’s considered taking up the issue without Canada’s blessing — something it has never done before.